Burt v. Francis arose from a contentious Texas divorce involving family violence. The trial court dissolved the marriage on May 29, 2014. There were three children. Although the couple had agreed to the terms of the divorce decree, they still fought over their three children. The mother later testified that the father was required to have the overnights with the kids at his mother’s house, and his behavior worsened after their divorce.
On the day after the divorce, the father was angry when he picked the children up for their weekend. He started yelling and smacking his fists. The mother was worried about his ability to drive safely and called the sheriff. That night, the father returned the children. The parents argued. The father pulled the three-year-old out of her arms and woke up the older child, and he left with all the children. He also threatened the children and told them the mother was a bad person. She called the sheriff again.
On June 30th, the father came by and berated the children, again claiming the mother was evil. The mother asked him to leave, but he wouldn’t. Their son was terrified. The father at another point shot a handgun at the mother’s house, claiming he was just showing the kids his new gun. The mother later would testify that the children were afraid of their father and that his actions were intimidating and oppressive.
She filed an application for a protective order and asked to modify the parent-child relationship between the father and children. A temporary restraining order was granted, which stopped the defendant from having possession of the children. The trial court heard the application and motion to modify. The mother testified that while the temporary restraining order was in effect, the children were happier. She also admitted the father hadn’t been physical toward her, although she reiterated that his violent behavior had gotten worse after the divorce and that the kids and she were scared of him. The mother’s mother also testified to support the protective order and said that the son got the worst of it and that he reacted by shaking and crying.
The father also testified that he was emotional and passionate but didn’t feel like he was actually yelling. He was just “preaching” to his son.
The appellate court explained that the protective order was in effect until the summer of 2016. Usually, the expiration of an order makes a case moot and not able to be reviewed. However, there is a collateral consequences exception when there is a protective order related to domestic violence. This is because there is a stigma attached to being the subject of a protective order.
The father argued that there wasn’t enough evidence to show that family violence existed. The appellate court explained that under sections 81.001 and 85.001 of the Texas Family Code, a protective order is issued if the court determines family violence has occurred and is likely to occur again in the future. Family violence is any action by a family member against another family member that’s intended to result in physical injuries or a fear of imminent physical harm. A family member’s acts can be considered family violence if they’re intended to result in harm or a reasonable fear of imminent harm.
The father contended there was no evidence he committed physical violence in the past or made any threats that reasonably put his family members in fear of imminent harm. The appellate court disagreed, explaining that threats that made a victim fearful of being hurt were a form of family violence. In this case, the father had taken an intimidating posture and yelled at the children and her. The son reacted by trembling and crying. The trial court’s order was affirmed.
If you are considering divorce and are concerned about family violence, contact the Texas attorneys at the McClure Law Group at 214.692.8200.
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Johnny Depp, Amber Heard, and a Discussion on Family Violence Protective Orders and Temporary Restraining Orders in Texas, June 9, 2016
Divorce and Taxes – What to do if your ex-spouse botched your joint tax return, May 31, 2016